(dissenting).
The incontestable fact in this action by the longshoreman Roper against the S/S “Harry Lane” is that recovery is denied for injuries resulting from a defect in equipment actively in use in discharging cargo.
It is insisted, first, that there was no negligence in failing to inspect the gear. It is said that the burden of such inspection would be excessive and is therefore not required. There is no need to analyze this reasoning, for the point is immaterial, if the warranty of seaworthiness extends to this situation.
On the second branch of the case, based on the claimed warranty of seaworthiness, the majority concludes, in accordance with the shipowner’s contention, that this was a “dead ship,” which owed the plaintiff no such obligation.
This was no dead ship. The stereotype does not fit and will not survive analysis. A phrase, apt enough to describe an inert vessel undergoing major repairs in a shipyard, is completely misapplied to one in course of discharging cargo — cargo which she has just transported many miles for delivery precisely as any other cargo carrier might do.1
It does not matter that before making the journey the vessel was inactive, or that she might thereafter again resume inactivity. We find her fully active on the day with which we are concerned. Unlike a repair-worker called in to make a vessel fit for service, as in West v. United States, 1959, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161, this plaintiff came aboard to perform a task rightly called traditional for seamen. Due to a failure of the equipment, he met with injury while thus engaged. Does this not meet the law’s every requirement for a recovery on the ground of the vessel’s unseaworthiness? I think it does, and recovery should not be denied because of the ship’s status before the voyage in question or its expected later status. There is nothing logically inconsistent or legally incongruous in saying that the actual conditions at the time of the accident control, not the past or future.
The only similarity between the West case and this is that in each the ship had been for a time in the moth ball fleet. After this common point is established all resemblance between the two cases disappears. In West the vessel was delivered to a shipyard for major repairs and complete overhaul, without reservation of control or supervision over the work. In West there was no cargo aboard nor was any contemplated. She was in every real sense withdrawn completely from service. Here, however, the ship was taken from the moth ball fleet and put into service as a carrier to deliver grain to an elevator at a considerable distance. This is the outstanding feature of our case and gives the “Harry Lane” its distinctive status as a carrier of cargo. Roper sustained injuries while assisting in the actual discharge of that cargo. As this is a seaman’s traditional work, he is entitled to the benefit of the warranty of seaworthiness. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Alaska Steamship Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Rogers v. United States, 1954, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120; Crumady v. The J. H. Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413.2
When the vessel in the West case was withdrawn from the moth ball fleet, if instead of being turned over to a contractor for “complete overhaul,” it had *419been used to carry cargo to a distant point and the plaintiff met with injury while assisting in the unloading, I have no doubt the Supreme Court would have permitted recovery.3
Totally irrelevant is the meticulous description of the earlier removal of engines, etc. Reducing a fully equipped ocean-going vessel to the condition of a barge does not alter the case here, since on the occasion under inquiry the vessel had been towed, like a barge, with a load of grain and was in process of delivery when the gear failed. Barges are not exempt from the obligation of seaworthiness. A vessel is defined in 1 U.S.C.A. § 3 as follows:
“The word ‘vessel’ includes .every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”
See also Ex parte Easton, 1877, 95 U.S. 68, 24 L.Ed. 373 (a barge is a vessel such that there can arise a maritime lien for wharfage, enforceable by a District Court sitting in admiralty); Ellis v. United States, 1907, 206 U.S. 246, 27 S.Ct. 600, 51 L.Ed. 1047 (holding that scows and floating dredges are vessels, and that the men working on them are seamen); Goett v. Union Carbide Corp., 1960, 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed. 2d 341 (a barge is a vessel to which the warranty of seaworthiness may be applicable) ; Jeffrey v. Henderson Bros., 4 Cir., 1951, 193 F.2d 589; Summerlin v. Massman Const. Co., 4 Cir., 1952, 199 F.2d 715.
Calling a cargo-carrying vessel a “floating warehouse” does not distinguish it from other water carriers or alter its obligations under maritime law for defects resulting in injury to those handling its cargo. So, in a sense, may any cargo-bearing vessel be called a “floating warehouse” while en route. Whatever the “Harry Lane’s” status may have been while idle and with a cargo aboard, her status as a vessel in navigation became clear when she proceeded to deliver the grain to the elevator more than twenty miles away. She was then not significantly different from any vessel that had never been in the moth ball fleet.
It is suggested that the vessel had no crew, but this vessel had a crew of six under a riding master while en route. The question of “signing on” is of no importance under these circumstances. The statutes relating to signing on, even if applicable, are for the benefit and protection of the seamen and have never been deemed to limit the scope of the term “seamen.”
Moreover, even if the seamen aboard the vessel during its journey would, for some reason, not be considered a crew, this would be immaterial. The absence of a regular crew may be significant in the ease of a ship undergoing repair, as in West, for it then may be a factor in determining whether the ship has been withdrawn from navigation. However, our ship was unquestionably in navigation, being actually used as a barge, and transporting a cargo. As previously pointed out, barges, with no men aboard during the journey, but with motive power furnished by a tug, are vessels in navigation whose seaworthiness is warranted. The men aboard the tug constitute the crew responsible for the barge.
If, upon completion of the voyage, the crew, whether travelling aboard the vessel itself or on the tug which has it in tow, withdraws and the longshoremen take over to make effective the purpose of the voyage by unloading the goods, these men stand in the shoes of the seamen and are accorded the rights pertaining to seamen. Starting with International Stevedoring v. Haverty, 1926, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, through Seas *420Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, to Crumady v. The J. H. Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, this principle has been recognized and maintained both in the interpretation of the general maritime law and in the construction of statutes enacted for the benefit of seamen generally. The point is no longer debatable.
From the erroneous assumption that the vessel was a “dead ship” owing no warranty of seaworthiness, the United States as owner proceeds to the next erroneous assertion — a pure non sequitur —that the vessel in any event warranted nothing beyond her own equipment. This contention, however, was put to rest by the Supreme Court in Alaska Steamship Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, where stevedore’s tackle brought aboard was held appurtenant to the ship when used in the ship’s service.
The Government also asserts that the marine leg, an endless belt extending into the bowel of the ship and lifting grain, is not to be considered a part of the ship’s equipment, because it was land-based. The fallacy of this proposition is exposed by the holding in Rogers v. United States Lines, 1954, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, where the shipowner was held liable for the unseaworthiness of the stevedore's land fall runner used to augment the ship’s gear. Also, in The Tungus v. Skovgaard, 1959, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, the defective equipment was shore-attached. There, a cargo of oil was being discharged from the vessel, and the company engaged for this purpose used its own pump and hoses to bring the oil ashore. This land-based equipment becoming defective, causing oil to spill on the deck, the plaintiff went aboard to make repairs. He slipped on the oil and fell to his death. The Supreme Court upheld the lower court’s holding that he was protected by the warranty of seaworthiness. See also Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, where the detailed facts as to the injury itself are not revealed, but where apparently a similar situation was present.
It seems to me immaterial that the marine leg was attached at the top to the grain elevator on the pier. Its lower end extended into the ship’s hold and was actually gathering the grain for discharge. The dominant fact is that it was equipment presently used in unloading. While it seems to me unnecessary to establish which part of the marine leg failed, it may be noted in passing that the part that broke and caused the injury was a strap holding a block attached to a scoop then collecting grain from the bottom of the hold and making it available to the conveyor belt.
Furthermore, since the vessel had no equipment of her own there is even less reason than ordinarily to relieve her of the established obligation to arrange for seaworthy equipment to handle cargo. If a vessel which has a full complement of gear of her own is not excused for failure of equipment brought aboard by the stevedore, as in Petterson, a fortiori she is no less vulnerable when by failure to provide equipment of her own she must rely on that supplied by others. The fact that the United States employed the grain company, which in turn employed the stevedore to perform the unloading, is immaterial. The obligation of the United States was non-delegable, Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872; Crumady v. The J. H. Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445; and it was absolute, Mitchell v. Trawler Racer Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941.
To summarize, Roper was aboard an active, not a dead vessel. To complete her journey it was necessary to unload the cargo of grain. While engaged in this traditional seamen’s work Roper sustained injury due to faulty equipment assigned to his use. Under these circumstances, the Supreme Court has made it clear that one in the position of this plaintiff is entitled to indemnity from the vessel’s owner. Therefore, I would reverse.
. In the record the journey is described variously as “upstream” and “downstream,” but it was stated at the oral argument that the vessel traversed a dis-stance of more than twenty miles from the “moth ball” fleet to the grain elevator.
. Witli all deference to the opinion in Hawn v. American S/S Co., 2 Cir., 1939, 107 F.2d 499, it provides no authoritative guide. It was decided before Sieraeki and the series of cases developing its doctrine.
. Lawlor v. Socony-Vacuum Oil Company, 2 Cir., 1960, 275 F.2d 599, points out the limits of the West doctrine. It holds that a ship in the yard for annual overhaul merely, as distinguished from major repairs, warrants to those working upon it that it is seaworthy. The instant case involves not even annual overhaul or any work which may be said to take it out of navigation.